Medical care case from Dougherty County to go before Georgia Supreme Court

ATLANTA — The parents of a young child are appealing to the Georgia Supreme Court a Georgia Court of Appeals decision in favor of the medical providers in Dougherty County who the parents claim did not give their child proper care.

At its 10 a.m. session on Monday, the state highest court will be hearing the case of Nguyen et al. v. Southwestern Emergency Physicians, P.C. et al. At issue will be what constitutes “emergency medical care,” as those who provide such care are given a greater degree of protection from liability under Georgia law.

On July 7, 2007, 6-month-old Keira Pech fell off a bed at her babysitter’s home and hit her head on a suitcase. The baby’s mother, Thu Carey Nguyen, was called and alarmed by what was described in court documents as a large, reddish purple swollen area on the right side of the baby’s head.

Court documents show Nguyen took the infant to the Phoebe Putney Memorial Hospital emergency room, where at 5:50 p.m., the baby was seen by a triage paramedic. He noted a hematoma on the baby’s head, and at 6:02 p.m., she was seen and examined by Michael Heyer, a physician’s assistant employed by Southwestern Emergency Physicians. Court documents show Heyer diagnosed a minor injury consisting of a scalp contusion.

Heyer did not call in the attending emergency room doctor or order radiology studies, and the baby was discharged at 6:10 p.m., court documents show. Three days later, Keira was brought back to Phoebe by ambulance after having trouble breathing while at her babysitter’s home. A scan revealed a large subdural hematoma, a collection of blood inside her skull putting pressure on her brain. She was taken to surgery where her skull was opened to remove the blood and relieve the pressure.

The baby reportedly suffered permanent damage, and by the age of 3, had seizures daily and could not walk or talk.

Keira’s parents sued the hospital, the emergency room physician, the physician’s assistant and Southwestern Emergency Physicians, alleging the medical providers breached the standard of care by failing to adequately examine the infant during her first visit to the emergency room and by failing to obtain the imaging necessary to reveal the developing subdural hematoma early enough to prevent catastrophic damage.

The parents filed a motion for summary judgment on the grounds that — because the emergency providers who intially saw Keira did not believe her symptoms presented a medical emergency — she did not receive “emergency medical care” as defined in the statute in question, and therefore the medical providers can be held liable for ordinary negligence in the case. The medical providers argued they did provide emergency medical care through examining, triaging, and diagnosing the baby and therefore they are liable only if there is clear and convincing evidence they were grossly negligent.

The trial court ruled in the parents’ favor.

Before the state Supreme Court, the family’s counsel is arguing, court documents show, that the trial court correctly interpreted the statute and the Court of Appeals erred by reversing its decision and ruling that a jury must decide the case. They further contend the Court of Appeals failed to strictly construe the statute by holding that any diagnosis, misdiagnosis or examination in the emergency room is “emergency medical care,” and the protection of the gross negligence standard in the emergency care statute does not apply — so there is no need for a trial.

Counsel for the medical providers contend the lawyers for the child’s parents are incorrect in arguing that the Court of Appeals ruled that any emergency room diagnosis constitutes emergency medical care and automatically triggers the application of the gross negligence standard.

“To the contrary, the Court of Appeals specifically held that there was a question of fact for a jury as to whether Keira even received ‘emergency medical care’ on July 7, 2007,” available records from the Georgia Supreme Court state on Southwestern’s argument in the case.

Counsel for the providers also argue that subjective beliefs of the health care provider do not determine whether emergency medical care was provided, and that the Court of Appeals correctly interpreted the statute when it found a jury question existed as to whether Keira received emergency medical care, court documents show.

The attorneys listed for Nguyen are Paul Phillips and Ralph Scoccimaro. The attorneys for the appelles are C. Richard Langley, Jeffrey Braintwain and Erica Jansen.